When The Supreme Court Gets The Facts Wrong, Democracy Pays The Price

Marc H. Morial 
President and CEO
National Urban League

“What Alito doesn’t mention is that since 2013, the racial turnout gap around the nation has exploded. It beggars belief that Alito was unaware of this fact. He reached back nearly 20 years to include the only two elections in American history in which Black and white turnout reached parity. Surely, he or one of his clerks checked to see whether they could update the Shelby County argument that racism in American elections was over by using more recent data. But the data is unambiguous: Roberts’s assurances in Shelby County were spectacularly wrong.” -- Kevin Morris, Brennan Center for Justice
What happens when the highest court in the land issues a decision based on faulty reasoning or inaccurate data?

The shameful Plessy v Ferguson in 1896 decision obliterated 30 years of hard-fought progress toward racial equality under the law and thrust the nation into the dark and violent era of Jim Crow.

Last month’s decision in Louisiana v Callais, like 2013’s Shelby v Holder, is destined to live in infamy alongside Plessy. We cannot and must not a single moment – let alone 70 years, as we did with Plessy – to rectify the Court’s mistake. 

The Court and Congress must acknowledge the Callais decision was based on misleading data and restore the provisions of the Voting Rights Act that it overturned.

The deluge of racially-motivated voter suppression laws that Shelby unleashed made a mockery of Chief Justice John Roberts’ claim that “current conditions” did not justify federal protection against discriminatory state voting laws.  So, too, does the frenzy of states to enact racially gerrymanderied frenzy congressional maps disprove the majority’s assumption that states would not exploit Callais to disguise discrimination as partisanship.

Even more egregiously, Justice Samuel Alito’s opinion relied on a false claim –“copied almost verbatim” from a Trump administration filing – that Black voter turnout had exceeded white voter turnout in two of the five most recent presidential elections.

As The Guardian’s investigation revealed, the administration’s false claim rested on a misleading voter turnout calculation: The administration calculated turnout using the entire adult population – including non‑citizens, disenfranchised individuals, and others ineligible to vote, which artificially inflates turnout figures—particularly for Black voters.  The generally accepted standard for calculating voter turnout is the Voting‑Eligible Population (VEP).   By the common standard, Black voter turnout in Louisiana has consistently trailed white turnout in every election since at least 2012.

In fact, the racial turnout gap not only widened nationwide since Shelby, it grew twice as fast in counties previously covered by the preclearance requirement that Shelby overturned.

Instead of acknowledging the truth of the late Justice Ruth Bader Ginsburg’s observation that "throwing out preclearance when it has worked … is like throwing away your umbrella in a rainstorm because you are not getting wet," the majority blithely ignored the wreckage Shelby left in its wake and used its own willful delusion to justify even further destruction.

Constitutional law cannot rest on false facts.  Hard won civil rights protections cannot be snatched away on the basis of manipulative sleight-of-hand.

The Supreme Court itself has explicitly recognized that precedents resting on demonstrably false or fundamentally outdated factual assumptions warrant reconsideration or overruling.  In his concurrence in Ramos v Louisiana, Justice Brett Kavanaugh’s wrote, “A precedent that is egregiously wrong…or based on a demonstrably false factual premise should not continue to bind the Court.”

The Supreme Court has the power to shape political power and voter representation for generations. Plessy, to the nation’s everlasting shame, grotesquely distorted that power. This generation has the opportunity—and the responsibility—to steer the nation back toward justice.

 
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